[Cite as State v. Eager,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 7-15-02

v.

RYAN D. EAGER, OPINION

DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court Trial Court No. 14-CR-0092

Judgment Affirmed

Date of Decision: August 31, 2015

APPEARANCES:

Billy D. Harmon for Appellant

J. Hawken Flanagan for Appellee Case No. 7-15-02

PRESTON, J.

{¶1} Defendant-appellant, Ryan D. Eager (“Eager”), appeals the February

25, 2015 judgment entry of sentence of the Henry County Court of Common

Pleas. For the reasons that follow, we affirm the judgment of the trial court.

{¶2} On October 16, 2014, the Henry County Grand Jury indicted Eager on

seven counts: Counts One through Seven of gross sexual imposition in violation of

R.C. 2907.05(A)(4), third-degree felonies. (Doc. No. 2).

{¶3} On October 24, 2014, Eager appeared for arraignment and entered

pleas of not guilty. (Doc. No. 11).

{¶4} On January 8, 2015, Eager withdrew his pleas of not guilty and

entered guilty pleas, under a written plea agreement, to Counts One, Two, Three,

and Four. (Doc. No. 14); (Jan. 8, 2015 Tr. at 10-11). In exchange for his change

of pleas, the State agreed to dismiss Counts Five, Six, and Seven. (Id.); (Id. at 2).

The trial court accepted Eager’s guilty pleas, found him guilty on Counts One,

Two, Three, and Four, dismissed Counts Five, Six, and Seven, and ordered a

presentence investigation (“PSI”). (Doc. Nos. 16, 17); (Jan. 8, 2015 Tr. at 11).

{¶5} On February 20, 2015, the trial court sentenced Eager to three years in

prison on Count One, three years in prison on Count Two, three years in prison on

Court Three, and three years in prison on Count Four and ordered that Eager serve

-2- Case No. 7-15-02

the terms consecutively for an aggregate sentence of 12 years. (Doc. No. 17);

(Feb. 20, 2015 Tr. at 13).

{¶6} On February 25, 2015, the trial court filed its judgment entry of

sentence. (Doc. No. 17).

{¶7} On March 2, 2015, Eager filed his notice of appeal. (Doc. No. 20).

He raises one assignment of error for our review.

Assignment of Error

The Sentence Imposed upon Defendant-Appellant was Contrary to Law and an Abuse of Discretion.

{¶8} In his assignment of error, Eager argues that the trial court erred in

imposing consecutive sentences because there is no evidence in the record that the

victim’s harm was great or unusual as required by R.C. 2929.14.

{¶9} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; that the sentencing statutes’ procedure was not

followed or there was not a sufficient basis for the imposition of a prison term; or

that the sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-

24,

(stating that “the clear and convincing evidence standard

of review set forth under R.C. 2953.08(G)(2) remains viable with respect to those

cases appealed under the applicable provisions of R.C. 2953.08(A), (B), and (C) *

* *”); State v. Rhodes, 12th Dist. Butler No. CA2005-10-426,

, ¶

-3- Case No. 7-15-02

4; State v. Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39,

,

citing R.C. 2953.08(G).

{¶10} Clear and convincing evidence is that “which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford,

(1954), paragraph three of the

syllabus; State v. Boshko,

(12th Dist. 2000). An

appellate court should not, however, substitute its judgment for that of the trial

court because the trial court is “‘clearly in the better position to judge the

defendant’s dangerousness and to ascertain the effect of the crimes on the

victims.’” State v. Watkins, 3d Dist. Auglaize No. 2-04-08,

,

quoting State v. Jones,

(2001).

{¶11} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently

with any other prison term, jail term, or sentence of imprisonment imposed by a

court of this state, another state, or the United States.” R.C. 2929.41(A). R.C.

2929.14(C) provides:

(4) * * * [T]he court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the

offender and that consecutive sentences are not disproportionate to

-4- Case No. 7-15-02

the seriousness of the offender’s conduct and to the danger the

offender poses to the public, and if the court also finds any of the

following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a

sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18

of the Revised Code, or was under post-release control for a prior

offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more

of the multiple offenses so committed was so great or unusual that

no single prison term for any of the offenses committed as part of

any of the courses of conduct adequately reflects the seriousness of

the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

{¶12} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07,

; State v. Peddicord, 3d Dist. Henry No. 7-12-

-5- Case No. 7-15-02

24,

. Specifically, the trial court must find: (1) consecutive

sentences are necessary to either protect the public or punish the offender; (2) the

sentences would not be disproportionate to the offense committed; and (3) one of

the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.;

{¶13} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings

into its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-

Ohio-4140, ¶ 50, citing State v. Bonnell,

,

. A trial court “has no obligation to state reasons to support its findings” and is

not “required to give a talismanic incantation of the words of the statute, provided

that the necessary findings can be found in the record and are incorporated into the

sentencing entry.”

.

{¶14} Eager concedes that the trial court made the three statutorily required

findings before imposing consecutive sentences at the sentencing hearing and

incorporated those findings into its sentencing entry. Specifically, at the

sentencing hearing, the trial court said:

Now I’ve looked at all those factors and it is fair to say that I do

deem the consecutive sentences are appropriate. It is necessary to

protect the public from future crime and to punish the offender and

that consecutive sentences are not disproportionate to the seriousness

-6- Case No. 7-15-02

of the offenders [sic] conduct. This was a small child, this was an

innocent child and the danger that you pose to the public because

you were in a position of trust, it would be very easy for someone to

trust you again. The Court would further find that the offenses were

committed as part of a course of conduct and the harm caused by

these multiple offenses was so great and unusual that no single

prison term for any of the offenses committed is part of the course of

conduct adequately reflects the seriousness of the offenders conduct.

I don’t find that the sentence that I am about it impose is

disproportionate given the conduct.

(Feb. 20, 2015 Tr. at 12-13). The trial court incorporated its findings into its

sentencing entry. (See Doc. No. 17). Therefore, the trial court made the

appropriate R.C. 2929.14(C)(4) findings before imposing consecutive sentences.

{¶15} However, Eager argues that his sentence is clearly and convincingly

contrary to law because the record does not support the findings the trial court

used to justify the imposition of consecutive sentences—that is, Eager argues that

the trial court’s imposition of consecutive sentences was improper because there is

no evidence in the record that the victim’s harm was great or unusual. While a

trial court is not required to state reasons in support of its R.C. 2929.14(C)(4)

findings, an appellate court may take action if the record clearly and convincingly

-7- Case No. 7-15-02

does not support the trial court’s findings under R.C. 2929.14(C)(4). See

. See also R.C 2953.08(G)(2)(a).

{¶16} In support of his argument that the record does not support his

sentence, Eager points to a portion of the dissenting opinion in State v. Hale. 3d

Dist. Marion No. 9-13-17,

(Rogers, J., concurring in part and

dissenting in part). In particular, Eager relies on that portion of the dissenting

opinion in Hale to argue that the trial court erred in imposing consecutive

sentences because the trial court did not make separate and distinct findings under

R.C. 2929.14(C)(4). See id. at ¶ 39. Eager avers that the trial court’s findings

were not separate and distinct because, similar to Hale, there is no victim-impact

statement and “nothing in the record that suggests that [Eager’s] activity has led to

counseling, or any specific emotional complications” for the victim. (Appellant’s

Brief at 4); Hale at ¶ 43.

{¶17} Eager’s argument is meritless. First, not only does Eager solely rely

on a portion of a dissenting opinion in support of his argument, but his reliance on

that opinion is misplaced. The portion of the dissenting opinion in Hale on which

Eager relies avers that the trial court’s imposition of consecutive sentences was

improper because the trial court relied on evidence outside of the record to

conclude that Hale’s conduct resulted in a great or unusual harm. That is not the

case here. At the sentencing hearing, unlike the defendant in Hale, Eager agreed

-8- Case No. 7-15-02

that the victim suffered “emotional stress” from Eager’s conduct. See Hale at ¶

42; (Feb. 20, 2015 Tr. at 7). Yet, on appeal, Eager argues that the trial court

improperly assumed that the victim endured psychological harm as a result of

Eager’s conduct. Eager cannot now argue that the trial court improperly made that

assumption. See State v. Boles, 2d Dist. Montgomery No. 20730,

(concluding that the defendant’s “attempt to make the exact

opposite argument on appeal” than he made to the trial court was without merit);

State v. Blanton,

,

, ¶ 10 (10th Dist.)

(“Appellant may not stipulate at trial that he was required to provide notice and

thereafter argue on appeal that he was not required to provide notice.”).

{¶18} Moreover, Eager appears to suggest that there must be a victim-

impact statement in the record for the trial court to conclude that a child victim of

a sexually based offense suffered psychological harm. R.C. 2947.051 governs

victim impact statements and provides:

(A) In all criminal cases in which a person is convicted of or pleads

guilty to a felony, if the offender, in committing the offense, caused,

attempted to cause, threatened to cause, or created a risk of physical

harm to the victim of the offense, the court, prior to sentencing the

offender, shall order the preparation of a victim impact statement * *

*.

-9- Case No. 7-15-02

R.C. 2947.051(A). “‘The purpose of the [victim impact] statement is to inform the

court about any economic loss and physical injury suffered by the victim as a

result of the offense and to provide other information about the impact of the

offense upon the victim.’” State v. Sealey, 11th Dist. Lake No. 2002-L-100,

, quoting State v. Garrison,

(2d

Dist. 1997), citing, R.C. 2947.051(B). The victim impact statement must be

considered by the trial court in sentencing the defendant. “A trial court’s error in

failing to order a victim impact statement is not reversible, absent an affirmative

demonstration of prejudice to the appellant.’”

citing State v. Patterson,

(10th Dist. 1996), citing State v. Penix, 4th Dist. Scioto No.

90CA1887,

, *5 (Oct. 23, 1991).

{¶19} Eager did not object to the trial court’s failure to order a victim

impact statement; therefore, the trial court’s failure to order the statement must

constitute plain error. State v. Shaffner, 12th Dist. Madison No. CA2002-07-012,

, ¶ 7. “Crim.R. 52(B) provides that ‘[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the

attention of the court.’”

quoting Crim.R. 52(B). “For there to be plain error

under Crim.R. 52(B), the trial court must have deviated from a legal rule, the error

must have been an obvious defect in the proceeding, and the error must have

affected a substantial right.” State v. Bagley, 3d Dist. Allen No. 1-13-31,

-10- Case No. 7-15-02

, citing State v. Barnes,

(2002).

“Generally, ‘[n]otice of plain error under Crim.R. 52(B) is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.’” Shaffner at ¶ 7, quoting State v. Long,

(1978), paragraph three of the syllabus.

{¶20} The trial court’s failure to order a victim impact statement under R.C.

2947.051 does not amount to plain error. Eager failed to demonstrate how the trial

court’s failure to order a victim impact statement affected his substantial rights.

Although Eager argues that the record does not contain any evidence that the

victim suffered emotional complications as a result of his actions to support the

trial court’s finding under R.C. 2929.14(C)(4)(b), Eager conceded at the

sentencing hearing, as we noted above, that the victim suffered emotional stress as

a result of his actions. Eager makes no further argument how a victim impact

statement would have mitigated his crimes. See Shaffner at ¶ 8 (“Victim impact

statements generally work to the prosecution’s benefit and the criminal

defendant’s detriment.”); Sealey at ¶ 62 (concluding that the defendant failed to

show prejudice because “the preparation of victim impact statements in this case

would have added little, if any, value to the sentencing proceeding besides expense

and delay”), citing

. Therefore, it was not plain error for the trial

court to fail to order a victim impact statement under R.C. 2947.051.

-11- Case No. 7-15-02

{¶21} Instead, it is clear from the record that Eager’s offenses were

committed as part of a course of conduct, which resulted in great or unusual harm.

See, e.g., Hale at ¶ 23; State v. Hawkins, 2d Dist. Greene No. 2014-CA-6, 2014-

Ohio-4960, ¶ 12. Eager was originally indicted on seven third-degree felonies,

each carrying a possible five years of imprisonment, for a total possible sentence

of 35 years. The conduct underlying each count of the indictment involved Eager

placing “his hand in [the] pants and underwear, [and] then rubb[ing] the vagina” of

the eight-year-old daughter of his girlfriend with whom Eager shared a home.

(PSI at 3). At the time Eager committed the conduct, he was in a position of trust

and authority over his victim. (Id.). Furthermore, unlike Hale, Eager did not

challenge the contents of the PSI report. Therefore, the trial court did not err in

concluding that Eager’s conduct was part of a course of conduct that resulted in

great or unusual harm, and Eager failed to clearly and convincingly demonstrate

that his sentence is unsupported by the record or contrary to law.

{¶22} Eager’s assignment of error is overruled.

{¶23} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI, J., concurs in Judgment Only.

-12- Case No. 7-15-02

ROGERS, P.J., dissents.

{¶24} Although the trial court made the mandatory findings to impose

consecutive sentences, the record is devoid of any evidence that supports a finding

of great or unusual harm. Therefore, I must respectfully dissent.

{¶25} To impose consecutive sentences upon a defendant, the trial court

must find “that the consecutive service is necessary to protect the public from

future crime or to punish the offender and that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public[.]” R.C. 2929.14(C)(4). In addition, the trial court

must also find that one of the following three additional factors is met:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

(Emphasis added.) R.C. 2929.14(C)(4)(a)-(c).

{¶26} In sentencing Eager, the trial court stated:

-13- Case No. 7-15-02

Now I’ve looked at all those factors and it is fair to say that I do deem the consecutive sentences are appropriate. It is necessary to protect the public from future crime and to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offenders [sic] conduct. * * * The Court would further find that the offenses were committed as part of a course of conduct and the harm caused by these multiple offenses was so great and unusual that no single prison term for any of the offenses committed is part of the course of conduct adequately reflects the seriousness of the offenders (sic) conduct. I don’t find that the sentence that I am about to impose is disproportionate given the conduct.

Sentencing Tr., p. 12-13. The relevant factor at issue here is R.C.

2929.14(C)(4)(b). Therefore, the State was required to present evidence that the

harm caused to the victim was so great or unusual as to require consecutive

sentences.

{¶27} It is clear from the transcript that the trial court regurgitated the

statutory language of R.C. 2929.14(C)(4). Nonetheless, there is no evidence in the

record to support the conclusion that the victim’s harm was great or unusual under

R.C. 2929.14(C)(4)(b). No witnesses testified, and no victim impact statement

was ever filed. Compare State v. Nesser, 5th Dist. Licking No. 02CA103, 2005-

Ohio-4313, ¶ 19 (finding that consecutive sentences were properly imposed where

the victim was three years old and the mother of the victim testified at the

sentencing hearing regarding the psychological harm experienced by the victim).

Although the State suggested that the victim’s harm was “exacerbated” due to her

-14- Case No. 7-15-02

young age, a prosecutor’s statements are not evidence. See State v. Nagy, 8th Dist.

Cuyahoga No. 90400,

.

{¶28} The majority relies on Eager’s counsel’s statement at the sentencing

hearing that the victim suffered “emotional stress” from Eager’s conduct.

(Majority Opin., ¶ 17); Sentencing Tr., p. 7. Nothing is unusual about a claim of

emotional stress. Certainly every victim of a sexual crime exhibits some sort of

emotional stress, albeit in different degrees. Emotional stress is not unusual in

these types of cases, but it can be great. However, this court has no way of

knowing the extent of the victim’s psychological harm due to the State’s failure to

present any evidence at the sentencing hearing. A court is not permitted to assume

great or unusual harm without any evidence to support it. See State v. Hale, 3d

Dist. Marion No. 9-13-17,

(Rogers, J., concurring in part and

dissenting in part).

{¶29} While I agree that Eager’s conduct is reprehensible and that it created

the potential for great or unusual harm, there is simply no evidence in the record

that great or unusual harm resulted from Eager’s actions . See State v. Bruce, 4th

Dist. Washington No. 02CA51,

, ¶ 21. The State cannot say that

by simply violating the statute, the harm was automatically great or unusual. See

Hale at ¶ 41 (Rogers, J., concurring in part and dissenting in part).

-15- Case No. 7-15-02

{¶30} Since the record is devoid of any evidence that the victim’s harm was

great or unusual, the sentence is NOT supported by the record and the trial court

erred by imposing consecutive sentences. See id. at ¶ 45; State v. Snyder, 3d Dist.

Seneca No. 13-12-38,

. Therefore, the imposition of

consecutive sentences in this case was contrary to law and an abuse of discretion.

I would sustain Eager’s assignment of error and reverse the judgment of the trial

court.

/jlr

-16-